Express and Remedial Trusts Flashcards
Generally, what are the requirements of a valid trust?
A valid trust requires:
1) The creation by a settlor
2) Evidence of testamentary intent
3) A trustee [will otherwise be assigned by a court]
4) Ascertainable beneficiaries
5) Property in the Trust [trust res]
6) A valid trust purpose [just not illegal or against public policy!]
7) Settlor has capacity
What is a revocable trust?
A revocable trust is a trust that is made during the life of the testator.
It may be revoked at anytime until **the testator’s death.
What is an express trust?
A trust that results from the expressed intention of a property owner to create a trust with respect to property.
What is a private trust?
A trust that clearly states the intention to transfer property to a trustee to the benefit of a beneficiary.
What is an inter vivos trust?
A trust that is a lifetime transfer of property into a trust that is made by the settlor during their life.
Are trusts presumed to be revocable?
Yes!
How may a settlor amend or revoke the trust?
Either:
1) With substantial compliance with the method provided in the trust
2) If no method provided/is exclusive, may use another testamentary instrument that expressly refers to trust or devises property that was in trust.
What is a testaentary trust?
A type of private express trust that arises when the **terms of the trust are contained in the will.
The requirements for 1) A valid will; and 2) A valid trust must be met!
What is a charitable trust?
A charitable trust is a trust for a charitable purpose. It requires:
1) Express charitable purpose
2) For the benefit of community at large
OR
2) For class of persons where membership varies
Charitable purposes are construed liberally!
ESSAY TIP: How should you organize an essay about a testamentary trust?
Usually, the question will split up whether someone takes from 1) The will; and 2) The trust. Two different things; so two different sections!
ESSAY TIP: Can a party not named in the trust argue they should take under the trust instead of an ascertained beneficiary?
Only if they can prove the cy pres doctrine!
What is the cy pres doctrine?
A court may modify a charitable trust to seek an alternative charitable purpose if the original purpose becomes:
- Illegal
- Impracticable
- Impossible
Court must determine the settlor’s primary purpose or create a similar purpose. All depends on the intent of the settlor.
ESSAY TIP: Are charitable trusts presumed to have a charitable purpose?
Yes!
